What being Jewish taught me about arguing with authority

Posted Friday, March 4th, 2011 by Gregory Forman
Filed under Jurisprudence, Not South Carolina Specific, Of Interest to General Public

Though quite lax about following Jewish ritual, I identify strongly with the Jewish tradition when it comes to my world view and my personal behavior.  One curious thing I note in family court is how deferential many of my non-Jewish colleagues are to judicial authority and how some of the most obstreperous members of the local family court bar would include myself and fellow Jews.

There is a lesson I was taught in religious school when I was a teenager that encapsulates the Jewish perspective on dealing with authority, which colors my dealings with judges.  As I gain experience I realize that many of my non Jewish colleagues are unaware of this “Jewish” viewpoint.  I suspect this viewpoint colors my Jewish colleagues’ dealings with judges–but it would be considered an anathema to those outside the tradition.

In understanding Judaism, I was taught to contrast the stories of God’s interactions with Noah and the ark and with Abraham at Sodom.  In Genesis 6, God decides to destroy the world in a flood.  He explains his plans to Noah and commands Noah to build an ark.   Noah is silent as God explains his intention to destroy almost all life on earth.  In the final verse of Genesis 6, Noah obediently does what God commanded “Thus did Noah; according to all that God commanded him, so did he.”

In Genesis 18:20-33, God explains to Abraham, the first Jew, his decision to destroy the people of Sodom and warns Abraham that he and his family should prepare to flee the city.  Instead of blindly accepting God’s decision, Abraham argues:

And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked? Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that are therein? That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right?

Genesis 18:23-25 Note a few things about Abraham: not only does he refuse to blindly accept God’s decision, he appeals to God’s sense of justice and questions–respectfully–whether God’s decision is righteous.

In response, God partially relents:

And the LORD said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.

Genesis 18:26. But Abraham has just begun to bargain with God:

And Abraham answered and said, Behold now, I have taken upon me to speak unto the LORD, which am but dust and ashes: Peradventure there shall lack five of the fifty righteous: wilt thou destroy all the city for lack of five?

Genesis 18:27-28.  Again God relents, “And he said, If I find there forty and five, I will not destroy it.” Genesis 18:28.

Abraham isn’t close to finished: “And he spake unto him yet again, and said, Peradventure there shall be forty found there.”  God responds, “And he said, I will not do it for forty’s sake.” Genesis 18:29.

Three more rounds of bargaining ensue before finally:

And he said, Oh let not the LORD be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten’s sake.  And the LORD went his way, as soon as he had left communing with Abraham: and Abraham returned unto his place.

Genesis 18:32-33.

Abraham, I was taught, would not accept injustice, not even from God.  When Abraham believed God’s decision was unjust, he didn’t blindly accept God’s decision and prepare for his own safety–as Noah had done.  Instead he argued against the injustice of God’s decision, bargaining with God in his attempt to do justice.  Five straight times he come back at God, seeking to have God reduce the number of righteous Sodomites who must be located to save the city from destruction.  While Abraham isn’t disrespectful, he’s not particularly deferential either.

Coming from a culture that celebrates its founding member’s challenge to the authority and decision making of the ultimate authority, I find many of my colleagues overly deferential to judicial authority.  If Abraham believed he was acting properly in challenging God’s perception of justice, I see no problem challenging a family court judge’s perception of justice.  That many family court judges find even respectful challenging to be a form of insolence is, in my opinion, their problem not mine.   After all, if God can accept Abraham’s respectful challenge, a family court judge should be expected to accept a lawyer’s respectful challenge.

An attorney should be expected to argue against injustice, even–especially–when it is a judge who is creating that injustice.  An attorney too cowardly to do this may be deferential, but he or she is failing to be a zealous advocate for the client.


5 thoughts on What being Jewish taught me about arguing with authority

  1. Joe Underwood says:

    Isaac would probably contend that Abraham was prepared to be alarmingly deferential to authority.

    1. Yeah, Joe, that’s one of the more disturbing stories in the Old Testament. Can’t really reconcile it with Abraham advocating for the righteous of Sodom either. No one ever said that being Jewish was easy. Perhaps why we make up 0.3% of the human race.

  2. It is not a matter of religion; it is a matter of ethics. See Rule 407, South Carolina Rules of Professional Conduct, Preamble 5, “While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it also a lawyer’s duty to uphold legal process.”

    I now digress a little. For years I have counseled young lawyers that asking the Court “May I approach?” is silliness without any precedent in South Carolina. After all, if it were required, or even desirable, Mr. James F. Dreher would have so taught Chief Justice Toal, Justice Pleicones, Jack Lawrence, Billy Epps, and the remainder of my law school class of 1968. I always contended that such language takes unnecessary time and unnecessarily clutters the record.

    Imagine my surprise when I walked to the bench and handed my client’s financial declaration to the judge at the outset of a serious contested custody and visitation case and the judge asked, “Mr. McDow, did you ask if you could approach?” The judge was one for whom I have great respect as one of the best judges is South Carolina and is still one of my favorite judges before whom I want to try serious legal and factual issues.

    I responded, “Your Honor, with all due respect, I do not want to pick a fight with this court, particularly at the outset of a contested case; however, I am aware of no authority or precedent for the practice of asking to approach. It is not an issue of respect, because I have great respect for this court, but it is a matter of judicial economy, both of time and the printed record.”

    The judge said nothing more on the subject nor did I.

    When I got back to my office, I spent several hours researching the issue. Apparently some states require lawyers to stand while addressing the court, a witness, or the jury. Other states require the lawyer to sit. The “may I approach” requirement comes from the states who require the lawyers to sit. It has no application in states where the lawyer is required to stand. It was probably imported into South Carolina by some professor who passed the bar in a “sitting” state and had never tried a case in South Carolina.

    I take the position that the bench belongs to the judge and that the entire area between the bar and the bench belongs to me. I owe it to my client to protect “our territory.”

    I also once had a major disagreement with one of my favorite circuit judges over whom gets the counsel table closer to the jury in a criminal case. You can read about the appellate court’s erroneous affirmation of the judge’s decision in State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004) (which probably holds the record for the most published opinions, concurrences, and dissents in once case in this state).

    And I am not even Jewish.

    1. Tom:

      I consider you an honorary Jew. You would fit right in.

  3. (Lawyer humor, I see.)
    Well, I’m just a plain spoken old Scots and I protect my own territory.

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